- Terms and Conditions
1.1 Unless otherwise agreed in writing, these Terms and Conditions of Sale (Terms) apply to and govern all sales of goods and supply of services by Tolmar Australia Pty Limited (Seller) to you (Customer). Any order for goods or services from the Seller placed by the Customer on the website will be deemed acceptance of these Terms.
1.2 Unless otherwise agreed in writing, the Seller’s quotation (if any), the Seller’s standard online order form and these Terms constitute the entire agreement between the Seller and the Customer for each order.
1.3 Any catalogues, leaflets, promotional material and other documents supplied by the Seller are supplied only for information purposes and do not alter or vary these Terms.
1.5 Before placing an order the customer will be asked to agree to these Terms. The Customer must tick the box marked “Accept” at the end of these Terms to accept them. If the customer refuses to accept these Terms they will not be able to order any Products from the sellers website.
1.6 The customer should print a copy of these Terms or save them to file for future reference.
- Customer’s Order and Products
2.1 All Orders placed by the Customer must be placed on the sellers standard online order form.
2.2 An order will only be binding on the Seller when the Seller accepts an order. Once the Seller has accepted an order, it cannot be cancelled by the Customer without the Seller’s prior approval.
2.3 After the customer places an order, the customer will receive an e-mail from the seller acknowledging that the order has been received. However, please note that this does not mean that the order has been accepted.
2.4 The Seller will confirm our acceptance to the customer by sending an e-mail that confirms that the Products have been dispatched (“Dispatch Confirmation”). The Contract between the seller and the customer will only be formed once the Dispatch Confirmation email has been sent.
2.5 The supply of goods or services is subject to availability and the Seller reserves the right to suspend or cancel any order (regardless of whether that order has previously been accepted), in whole or in part upon notification to the Customer.
2.6 To the extent permitted by law, the Seller accepts no responsibility whatsoever, and will not be liable to the Customer, for any errors in dimensions, quantities, and specifications or otherwise where orders for any goods are placed on the Seller by the Customer other than in writing. All orders placed other than on the sellers online order form must be confirmed in writing and noted as a confirmation to prevent double orders.
2.7 The images of the Products on the seller’s website are for illustrative purposes only. The packaging of the Products may vary from that shown on images on our site.
2.8 The Customer may only purchase Products from our site if:
(a) the customer is at least 18 years old;
(b) the customer or the person the customer cares for is under the supervision of a healthcare professional for their condition
(c) the customer has been recommended to use the Products by a qualified healthcare professional (such as a physician or dietitian);
(d) the customer provides the seller with the name of the HCP who recommended the product; and
(e) the customer understands that the product should only be used by the patient it is ordered for, and may not be resold or passed on to any other person in any circumstances.
(f) The Seller is not able to supply Products if the customer does not satisfy these criteria.
Any warranty, representation, promise, statement or description by the Seller, other than those expressly set out in a quotation, is excluded to the maximum extent permitted by law and the Customer warrants that it has relied solely upon its own inspection, skill and judgment and not relied on any such warranty, representation, promise, statement or description in submitting any order.
- Selling Price
4.1 Unless otherwise agreed in writing, the selling price for goods and services is the price specified in the Seller’s website www.profertil.com.au.
4.2 The Seller reserves the right to update or amend its prices from time to time and will update its website accordingly.
4.3 Unless otherwise stated, the selling price does not include any GST or other taxes, customs duty, freight or delivery charges or insurance, which will be charged to the Customer in addition to the listed price for the goods and/or services. Without limitation, all prices are subject to variation in exchange rates and supplier costs (which may affect the list price) unless otherwise agreed in writing. The Seller may charge a reasonable handling fee for all orders delivered to the Customer unless delivery is made by the Seller’s approved freight forwarder.
- Delivery time and place
5.1 Unless otherwise agreed in writing by the Seller.
(a) Delivery of goods and provision of services is to be made at the Customer’s Premises;
(b) The Seller is responsible for arranging delivery of goods; and
(c) The Customer is responsible for all freight, delivery and other charges (including taxes) associated with delivery of the goods unless delivery is made by the Seller’s freight forwarder.
5.2 Where any quotation or acceptance of order given by the Seller identifies a delivery date, this date represents the time at which the relevant goods are to be ready for dispatch from the Seller’s or Seller’s agent’s premises and not the time at which the goods will be delivered to the Customer’s premises nor the agreed point of delivery. Where a delivery date or date of performance of services is specified, the Seller will use reasonable commercial endeavours to make delivery or perform the services on the specified date, however, all delivery and performance dates are estimates only and to the maximum extent permitted by law the Seller is not liable to the Customer or any other person for any delay in delivery or performance. Delays in delivery or performance of the goods or services will not entitle the Customer to cancel any order, withhold payment or not accept delivery of goods unless previously arranged by the Customer.
5.3 Unless otherwise agreed in writing, time is not of the essence in any delivery of goods or performance of services.
- Force Majeure
If, for any cause beyond the Seller’s control (including without limitation, any act of God, war, strike, lock out, industrial dispute, governmental or semi governmental award, enactment priority or restriction, fire, flood, storm or tempest, delay in obtaining Licenses, transport, labour or materials, accidents, damage to the Seller’s works or business or those of its suppliers (a Force Majeure Event), the Seller is prevented from making delivery or performance at the time stipulated, the Seller will be released from all its obligations under these Terms without liability for non-performance. Upon the occurrence of a Force Majeure Event, the Seller is entitled, at its option, to extend the time for delivery or performance for a reasonable period or to terminate the relevant order, however, the Customer is not released from its obligation to pay for all deliveries made or services performed prior to the date of suspension or termination of an order and for all expenses incurred and monies paid by the Seller in connection with the order.
- Returning Goods and Claims
7.1 The Customer must inspect the goods immediately following delivery. Subject to the Australian Consumer Law (ACL), the Customer may only return goods with the prior approval of the Seller. Subject to the ACL, the following conditions apply for all goods returned with the approval of the Seller:
(a) a written return claim (via email, letter or fax) must be received by the Seller within five (5) working days after the delivery of the goods, any claims made by phone call need to be authorised by the seller;
(b) the original order number and date must be quoted;
(c) on approval of the written return claim by the Seller, the Seller or its authorised agent will issue a returns authorisation form and/or number which is to be attached to the goods when returned;
(d) Where goods were originally supplied in a special manufacturer’s carton, any return must be made in that original carton. All goods must be in their original and unmarked condition, complete with any instruction sheets supplied;
(e) Outward and inward freight, transport and delivery charges are the responsibility of the Customer. If not pre-paid by the Customer, the cost of freight, transport and delivery will be deducted from the amount of credit and, if no credit is available, then the cost will be invoiced to the Customer;
(f) goods must be returned within 20 days of the date of delivery;
(g) a reasonable re-stocking fee may be charged by the Seller; and
(h) No responsibility will be accepted by the Seller for any delays in crediting the Customer where such delay is caused by goods being incorrectly branded or returned without adequate identification of both the Customer and of the goods returned.
7.2 Subject to the ACL, the following goods cannot be returned for credit:
(a) Any goods altered or damaged by the Customer.
7.3 Subject to the ACL, any claim that the goods or services are defective, damaged, faulty, short delivered or not supplied in accordance with these Terms and/or the relevant order must be made at the time of delivery or the time the services are provided or in writing to the Seller within ten (10) working days after delivery of the goods or completion of the services to the Customer. If the Customer fails to make a claim within this timeframe then, to the extent permitted by law, the goods and or services are deemed to have been accepted by the Customer and the Seller will not be liable (and the Customer waives any rights to seek remedies) in relation to any later claim for any damage to, discrepancy or other non-compliance in the goods or services received by the Customer.
7.4 Any claim for goods damaged in transit must be accompanied by a photograph of the affected goods. If the Customer fails to provide photographic evidence of the damaged goods, to the extent permitted by law, the goods are deemed to have been accepted by the Customer and the Seller will not be liable (and the Customer waives any rights to seek remedies) in relation to any later claim for any damage to the goods or received by the Customer.
7.5 A signed consignment note and/or proof of delivery note is a legal document and if signed is acceptance that the goods and/or services have been accepted as delivered by the Customer. If the Customer claims for short supplied goods and the consignment note and/or proof of delivery note has been signed by the Customer and indicates the delivery in question was made, to the extent permitted by law, the goods and or services are deemed to have been accepted by the Customer and the Seller will not be liable (and the Customer waives any rights to seek remedies) in relation to the claim for short supplied goods.
7.6 Any claim for pricing discrepancies for the goods or services provided by the Seller must be made in writing by the Customer to the Seller within ten (10) working days of receipt of invoice.
7.7 All claims payments will be made by the Seller by payment refund.
- Seller’s warranty
8.1 Subject to clause 8.2 and any written warranty entered into between the Seller and the Customer with respect to goods provided under these terms and to the maximum extent permitted by law:
(a) the Seller excludes and disclaims all guarantees, conditions, warranties, liabilities, representations and other terms and conditions in relation to the goods and/or services whether express, implied or statutory; and
(b) where goods have not been manufactured by the Seller, the Customer is only entitled to such benefits as the Seller may receive under guarantees, warranties or representations given to the Seller by the manufacturer of the goods to the extent the Seller is able to pass on such benefits.
8.2 Nothing in these Terms exclude, restrict or modify any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the ACL which contains guarantees that protect the purchasers of goods and services in certain circumstances.
8.3 Where any guarantee, term, condition or warranty is imposed under the ACL or any other applicable legislation (Non-Excludable Provision), and the Seller is able to limit the Customer’s remedy for a breach of such Non-Excludable Provision, then the liability of the Seller for a breach of any such Non-Excludable Provision is limited at the Seller’s option to any one or more of the following:
(a) in the case of the goods:
(i) repair or replacement of the goods in accordance with clause 15.4 or the supply of equivalent goods;
(ii) payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to the Customer’s account, in cash or by cheque at the Seller’s discretion; or
8.4 Parts and labour for repair or replacement under clause 8.3(a) will be provided by the Seller during normal working hours at a place of business of the Seller. The Seller is not liable for the cost of transportation of the goods to such a place of business. All rejected goods or defective goods will be the property of the Seller to dispose of as it sees fit.
- Seller’s liability
Subject to clause 8 and to the maximum extent permitted by law, but notwithstanding any other provision of these Terms, the Seller is not liable in any way whatsoever to the Customer or any third party, whether in tort (including negligence), contract or otherwise, for any loss or damage, whether direct, indirect, special or consequential, or for damages relating to loss of profits, opportunity, revenue, goodwill or anticipated savings, whatsoever and howsoever arising (including but not limited to loss arising by reason of delay, non-delivery, defective materials or workmanship) out of or in connection with the supply of goods or services. This limitation applies irrespective of whether the loss or damage was foreseeable and whether or not the Supplier had been advised of the possibility of such loss or damage.
- Application of International law
To the extent permitted by law, the application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.
The Seller may amend or vary these Terms at any time and will update variations on its website..
- Governing Law
The laws of New South Wales apply to these Terms and any account opened in the name of the Customer. The parties irrevocably submit to the non-exclusive jurisdiction of the courts in that State.
- No Waiver
A waiver of any provision of these Terms will not be effective unless express and given in writing. A failure, delay or indulgence by the Seller in exercising any power or right will not operate as a waiver of that power or right.
The Customer may not assign or transfer its rights and obligations under these Terms without the approval of the Seller which approval will not be unreasonably withheld. The Seller may assign or transfer its rights and obligations under these Terms at any time.
- Intellectual Property Rights
15.1 The Seller owns or has the right to use all intellectual property rights (including, but not limited to, any trademarks applied to any goods) in the goods and services supplied pursuant to these Terms (Seller’s IP). The Customer acknowledges and agrees it has and obtains no rights in relation to any part of the Seller’s IP.
15.2 The Customer shall not use, modify, develop or do any act or thing with any of the Seller’s IP including, but not limited to using, registering or attempting to register, any trade name or trade mark which is the same as or similar to the trademarks used by the Seller and/or applied to the goods.
15.3 In the event that the Customer becomes aware of or suspects any infringement of the Seller’s IP, the Customer shall immediately notify the Seller and shall at the request of the Seller provide the Seller with such cooperation and assistance as may be reasonably required by the Seller in taking any action against any such infringement or suspected infringement.
15.4 The provisions of this clause 26 shall survive any termination or expiry of these terms.